The Body or the Face

“The body or the face?” the loan shark’s muscle asks, a droll query from a guy with a square jaw and a fist like a cinder block. The clear implication is that, no matter the choice, it’s gonna hurt. A good outcome is no longer an option.

The Court of Arbitration for Sport (CAS), the place sports’ governing bodies go to when they’ve failed to govern effectively, might as well be giving pro cycling a choice between the body or the face right now. With a verdict coming in the appeal of Alberto Contador’s non-sanction for Clenbuterol doping, it’s important to recognize that, no matter the outcome, cycling’s gonna take a haymaker.

The 30 second version of the story is this: Alberto Contador tested positive for Clenbuterol at the 2010 Tour de France. The Spanish cycling federation (RFEC) opted not to suspend him. The UCI and WADA appealed that decision to CAS based on the WADA code of strict liability, i.e. that the athlete is 100% responsible for what goes into his or her body. Simply stated, if there’s dope, they doped.

Let’s not go any deeper into this case and it’s details than that. The details and the extremely long timeline of events only serve to obscure the underlying truths here. (If you need to play catch up, Padraig has written about the case extensively here, here and here.)

CAS is going to do one of two things. They’re going to uphold RFEC’s non-sanction of the rider, or they’re going to impose the standard two-year suspension that every other rider who’s tested positive has received. The body or the face.

If CAS decides that strict liability doesn’t pertain to Contador’s case, then a long list of suspended riders are going to have a serious grievance against the UCI. Think of Tom Zirbel or Fuyu Li, for example. Neither of those riders ingested a substance that anyone would argue helped them to win races, but they both served their suspensions. Strict liability, morally nettlesome as it may be, has been the law, so the possibility of CAS somehow striking it from the books, at least from a judicial point of view, will be bad for pro cycling. If an “I didn’t mean for it to be in my body” defense is allowed to stand, it then becomes open season, not just for Clenbuterol positives, but for any adverse analytical finding that might be attributed to contamination.

If, on the other hand, CAS follows precedent and suspends Contador, then we’ll have to vacate the results of two Grand Tours, the 2010 Tour and the 2011 Giro, not to mention a whole host of individual stages and smaller, albeit not-insignificant, races. There will be history books to correct, riders to promote, prize money to redistribute, legends to be recast. Because of the stature of the rider, the damage to the sport will be massive, complicated and long-term. The sport’s reputation, which already sucks, will get worse. Sponsorships will be affected. People not named Contador will lose money and opportunities.

There is a third way, I suppose. The CAS could take a hybrid approach, crafting a sanction for Contador that takes into account the minute amount of Clenbuterol that appeared in his system, but still pays some respect to the strict liability rule. Quite what that would be is hard to imagine, and if not a full blow to head or gut, still a stinger for a sport already on the ropes.

In fact, news out of Paris this week suggests that the CAS is not confining itself to issues of strict liability, that a partial examination of Contador’s tainted beef excuse IS being aired, and that the levels of Clenbuterol, minute by all accounts, are playing in front of the tribunal. If the CAS only concerns itself with the amount of the substance and its net effect, rather than possible reasons for its presence, we are likely headed for acquittal and all the fallout such a verdict will cause.

After all, these are the issues that have been examined ad absurdem by the UCI, WADA and RFEC over the last two years. “Did he dope?” is a different question than, “Did the doping help him win?” None of the answers are good ones.

The Contador case, as most in modern professional cycling, has gone on and on and on. The temptation to see the CAS verdict as a resolution is strong, but given the possible outcomes on the table, we should expect this mess to continue on for years to come. Shortly, we should know what the consequences are for Contador. The body or the face. But pro cycling is a long way from paying its debt to this particular loan shark.

9 comments

Because the amount of Clenbuterol Contador ingested was so small as to provide no effect on his performance at all, and the majority of labs where test could or might have been performed would not even have detected that small an amount, coupled with the fact that the WADA code of strict liability makes the accused prove his innocence rather than being proven guilty, there appears to be lots of room for some Solomon-like decision that splits the cycling baby in two. Maybe it will be a slap on the wrist, some form of probation–however that might be interpreted in a cycling setting–along with a proviso that Contador do some form of “community service,” such as speaking at schools and other forums about the dangers of abusing PEDs and that sort of thing.

I’m not sure of the outcome of this case, but I’m anticipating some form of very limited liability. I can’t see either extreme being taken in this case.

If Contador skates–even partially–they’ll have to deal with Tom Zirbel and Fuyu Li, but that seems easier and with less of a negative impact on cycling than a decision taken at either of the polarities.

I think the author is misinterpreting the strict liablility rule. As explained by lawyers, it doesn’t mean that the mere presence of a substance is sufficient to prove guilt, but rather it shifts the burden to the athlete to show that ingestion was unavoidable. Without getting into the merits of any particular case, a contaminated suplement is not unavoidable because people don’t need to take suplments. Contaminated food is different because people have to eat something. It should also be noted that in the closest analogous case, that of Fuyu Li, the rider did not challenge the test results or the imposition of a sanction so it’s not the case that different punishments are being handed out in the two cases.

@asgelle – I think what we have is a distinction without a difference. In cases where strict liability sanctions might be mitigated, the athlete has to produce the source of contamination to establish causality, not simply theorize about it. In order for Contador to prove that Clenbuterol ingestion was unavoidable, he would have to produce a Spanish steak with traces of Clenbuterol, ideally THE Spanish steak, which is silly because, at least theoretically, he ate it. As he’s never done that, the strict liability rule still applies.

“It means that each athlete is strictly liable for the substances found in his or her bodily specimen, and that an anti-doping rule violation occurs whenever a prohibited substance (or its metabolites or markers) is found in bodily specimen, whether or not the athlete intentionally or unintentionally used a prohibited substance or was negligent or otherwise at fault.”

I should add that I am neither lawyer nor scientist. My larger point (if I had one) was that it doesn’t matter. Cycling gets a black eye anyway.

In order to be effective rules must be easily enforced also respected. While I understand the purpose of the strict liability rule, i do not believe that it is realistic. Do any of us know what is in the food we ingest? Go to the local farmer’s market and buy food and you will still not really know what has been applied to it. Now go to a large commercial market with fruits and vegetables from around the world and items like honey that is blend from sources in five countries. This is the world we live in and the rules must make allowance for it.

Make all substances below a minimal amount exempt. Sure some cheats might escape but it would allow more reasonable enforcement. Otherwise a rider could get busted for cocaine because he licked his fingers after paying for the meal with twenty dollar bills.

But there IS a precedent of WADA dropping cases because of food contamination. There have been a few cases, the most notable was the one involving several soccer players during a junior World Cup, and there were also 5 players from the Mexican National Team who tested positive and got cleared shortly after.

I have very limited knowledge about the scientific details, but I don’t see why Contador’s case would be so different to the soccer cases. Strict liability rules were not enforced for dozens of soccer players; THAT is a precedent.

Sure, clenbuterol in cattle is not uncommon in Mexico and China, and it is not supposed to happen in Europe. But a minimal possiblity is still a possibility. It could have happened.

Now, I believe that the transfusion theory is very likely, but unless it can be proven according to the current technology and current laws(and I don’t see it happening), the case should be dropped.

I say, let him ride. He wins a lot, he gets tested a lot. If he did it once, he will do it again, and sooner or later he will get caught.
And maybe, just maybe he didn’t do anything wrong. Let him ride and time will tell.

to add to the legal chaos, the various courts and various international interest also complicate this as well, as jurisdictions cross up one another.

nonetheless, something I have considered in all fairness to the case Contador has, is fine…under the assumption it was a team meal, as he alleged…did any of the other teammates test positive in a similar fashion?